We think that the questions in this case were for the jury, and that, they having been presented' in a charge which was fully as favorable to the defendant as the evidence justified, the judgment should be affirmed.
The plaintiff testified that he stood where the car was accustomed to stop, about thirty feet from the junction of -East Broadway and Chatham square, waiting for a car of the defendant’s line; that as the car came up the conductor and driver were both in the front, engaged in conversation; that the car stopped; that he had two bundles, one of which he put on one of the seats of the car, and then put his' left foot on the step; that as soon as he got his foot on the step, the car moved on; that the conductor then shouted,. “ Look out for the wagon; ” that he, plaintiff, did not see the wagon, but was squeezed between it and the car and was thrown back. The. car was one of the open cars, with a step running along its whole length, which affords means of access.
It is not disputed that, if the testimony of the plaintiff is to be believed, the jury were justified in finding the verdict which .they did. It is claimed, however, that the verdict is against the weight of evidence because it is contradicted by the conductor who was on the car, and by one Dennis Martin, who was a passenger, both of whom testified that the car was in motion, and that the plaintiff endeavored to board the car' without waiting for it. to stop. A paper was also produced, signed by the plaintiff, which states that *395when the plaintiff was getting on the car, the car was going fast. "We have thus a case where a person who is injured swears positively that, before he attempted to board the car, it came to a stop; the evidence of the conductor that the car did not stop, his testimony being corroborated by a passenger on the car; and the production of a paper signed by the plaintiff, which corroborates the testimony of the conductor. I think that, if this paper had been written out by the plaintiff himself as his voluntary statement made shortly after the accident, corroborated as it is by the conductor and the other witness, a different case would be presented. This paper, as it was prepared, is not entitled, however, to the same credit as one prepared in that way. It is not pretended that the plaintiff wrote it. What happened was this : The plaintiff went to the railroad company to complain of the accident, and to demand some compensation for his injury. He was met there by a person who describes himself as complaint clerk of the Second Avenue Railroad Company and says that he is employed by the defendant to look up accident- cases, to secure witnesses, and to prepare defenses for the railroad company. When this plaintiff appeared, he was referred to this individual, who at once took up a blank containing printed forms of questions, and filled out what purported to be the answers of the plaintiff to those questions, and to that the plaintiff put his signature. Babcock, the person who wrote this statement, swears that he put down in it nothing but what the plaintiff told him, and all that the plaintiff told him, and that he read it "over to the plaintiff. The plaintiff swears that Babcock read the paper to him, but that he (the plaintiff) did not know what was put down. It is quite evident that the weight to be given to a paper prepared in this way, which was not read by the plaintiff, and as to which we have only the word of this employee of the defendant, whose duty it was to look up accident cases, to secure witnesses and prepare defenses for the railroad company, is quite different' from that to be given to a paper written out by a party and purporting to state the facts as they occurred. This man assumed that he had some claim against the railroad company, and went there to enforce it. Babcock, in the performance of his duty of preparing a defense for the railroad company, undertook to obtain from the plaintiff a statement which would exonerate the company from liability. A paper obtained from a person under *396such circumstances is certainly so open to suspicion as to require that the weight to he given to it should be determined by the jury.. The inherent probability is. rather in favor of the plaintiff. He stood on the corner motioning for the car. to stop. He says the car ' stopped. The conductor says it did not stop. No reason is given to show why the driver refused to stop and take this passenger on board. It seems to have been on a street corner. The railroad is operated for the purpose of carrying passengers. The car was ■almost empty. It does not appear that the car was late, or that there was any reason to hurry; and, under ordinary circumstances, the probability would be that the car would stop to allow a passenger to get on board. The conductor says that the car did not stop ; that the plaintiff came running from- the sidewalk behind an ice wagon and attempted to board the car, when he fell down opposite the ice wagon. The witness Martin, who was a passenger on the car, also testified that the man got on and stood on the steps of the ■car; that he .then fell down, and after that the conductor picked him up; that the car had not come to a stop when the plaintiff endeavored to get on. This was all the evidence, it being conceded that the driver is dead.
The court left it to the jury to say whether or not the car had stopped when the plaintiff attempted to get on, and instructed them that if the car was in motion it was negligence for the plaintiff to .attempt to board the car. Taking the evidence as a whole, the plaintiff’s story is not at all improbable. The jury "heard him tell his story, could notice his manner in testifying, and could judge of the credibility to be given to his testimony. They also heard the ■conductor and the passenger and the employee of the company who got the statement from the plaintiff. "We are not required to say that we approve the -decision of the jury upon the question submitted to them; and while this may be a close case, upon the whole testimony we do not think that there is such a plain, preponderance ■of evidence as would justify us in setting aside the verdict on the ground that it was against the weight of evidence.
A motion was made for a new trial upon the ground that the •decision was against the weight of evidence. If the trial judge having had the witnesses before him, being familiar with the occurrences at the trial, had set aside the verdict on the ground that it was *397against the weight of evidence, it does not follow that we should interfere with this exercise of his discretion. He, however, has denied the motion, and we think, upon the whole record, that we would not be justified in ordering a new trial upon that ground.
The judgment should, therefore, be affirmed, with costs.
Rumsey and O’Brien, JJ., concurred; Van Brunt, P. J., and Barrett, J., dissented.